FindLaw | 'Don't Ask, Don't Tell' Federal Appeals Court Ruling

United States Court of Appeals
For the First Circuit

Nos. 06-2313, 06-2381

THOMAS COOK; MEGAN DRESCH; LAURA GALABURDA; JACK GLOVER;
DAVID HALL; MONICA HILL; JENNY LYNN KOPFSTEIN; JENNIFER MCGINN;
JUSTIN PEACOCK; DEREK SPARKS; STACY VASQUEZ,

Plaintiffs, Appellants,

JAMES E. PIETRANGELO, II,

Plaintiff,

v.

ROBERT M. GATES*, Secretary of Defense; MICHAEL CHERTOFF,
Secretary of Homeland Security; UNITED STATES OF AMERICA,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Howard, Circuit Judge,

Campbell, Senior Circuit Judge

and Saris**, District Judge.

*
Pursuant to Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Robert M. Gates is automatically substituted for his
predecessor as Secretary of Defense, Donald H. Rumsfeld.
**
Of the District of Massachusetts, sitting by designation.

Stuart F. Delery, with whom Benjamin C. Mizer, Wilmer Cutler
Pickering Hale and Dorr LLP, Sharra E. Greer, Kathi S. Westcott,
Sharon E. Debbage Alexander, Aaron D. Tax, and Servicemembers Legal
Defense Network were on brief, for appellants.
James E. Pietrangelo, II, pro se.
Gregory G. Katsas, Principal Deputy Associate Attorney General
with whom Michael J. Sullivan, United States Attorney, Peter D.
Keisler, Assistant Attorney General, Jonathan F. Cohn, Deputy
Assistant Attorney General, Anthony J. Steinmeyer, Assistant
Director Appellate Staff, Civil Division and Mark T. Quinlivan,
Assistant United States Attorney were on brief, for appellees.
Tobias Barrington Wolff, on brief for amici curiae Akhil Reed
Amar, C. Edwin Baker, Erwin Chemerinsky, Owen M. Fiss, Pamela S.
Karlan, Andrew Koppelman, Kathleen M. Sullivan, and Laurence H.
Tribe, on brief for amici curiae Constitutional Law Professors.
Virginia A. Seitz, Eamon P. Joyce, and Sidley Austin LLP,
Leslie M. Hill, Robert Weiner, Christopher Anderson, and
Arnold & Porter LLP, on brief for amici curiae Law Professors.
Rose A. Saxe, Matthew A. Coles, Kenneth Y. Choe, and Sarah
Wunsch, on brief for amicus curiae American Civil Liberties Union
and American Civil Liberties Union of Massachusetts.
Patricia M. Logue and Bonnie Scott Jones, on brief for amicus
curiae Lambda Legal Defense and Education Fund, Inc.
John E. Bies, D. Jean Veta, and Covington & Burling, on brief
for amicus curiae of American Sociological Association and Social
Science Professors.
Steven W. Fitschen and Barry C. Hodge, on brief for amicus
curiae of the National Legal Foundation.
Gary D. Buseck, Mary L. Bonauto, Gay & Lesbian Advocates &
Defenders, William M. Hohengarten, Luke C. Platzer, and Jenner &
Block LLP, on brief for amicus curiae Gay & Lesbian Advocates &
Defenders.

June 9, 2008

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HOWARD, Circuit Judge. In 1993, Congress enacted a

statute regulating the service of homosexual persons in the United

States military. 10 U.S.C. § 654 (2007)(the Act). The Act, known

as quot;Don't Ask, Don't Tell,quot; provides for the separation of members

of the military who engage, attempt to engage, intend to engage, or

have a propensity to engage in a homosexual act. Id. § 654(b). In

the aftermath of this congressional action, several members of the

military brought constitutional challenges, claiming the Act

violated the due process and equal protection components of the

Fifth Amendment and the free speech clause of the First Amendment.

These challenges were rejected in other circuits. See Able v.

United States, 155 F.3d 628 (2d Cir. 1998); Holmes v. Cal. Army

Nat'l Guard, 124 F.3d 1126 (9th Cir. 1997); Richenberg v. Perry, 97

F.3d 256 (8th Cir. 1996); Able v. United States, 88 F.3d 1280 (2d

Cir. 1996); Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) (en

banc).

In 2003, the United States Supreme Court invalidated, on

substantive due process grounds, two convictions under a Texas law

criminalizing sodomy between consenting homosexual adults.

Lawrence v. Texas, 539 U.S. 558 (2003). Lawrence has reinvigorated

the debate over the Act's constitutionality. E.g., Pamela Glazner,

Constitutional Doctrine Meets Reality: Don't Ask, Don't Tell in

Light of Lawrence v. Texas, 46 Santa Clara L. Rev. 635 (2006);

Note, The Military's Ban on Consensual Sodomy in a Post-Lawrence

- 3 -

World, 21 Wash. U. J. L. & Pol’y 379 (2006); Jeffrey S. Dietz,

Getting Beyond Sodomy: Lawrence and Don't Ask, Don't Tell, 2 Stan.

J. C. R. & C. L. 63 (2005). This case is the second post-Lawrence

challenge to the Act to be decided by a federal court of appeals.1

I. Statutory and Regulatory Scheme

We begin by summarizing the statutory framework and the

accompanying Department of Defense (Department) directives. During

the 1992 campaign, President Clinton, preceding his first election,

promised to revisit the longstanding Department policy of

separating homosexual individuals from military service. After

taking office, President Clinton directed the Secretary of Defense

to review Department policy, and Congress undertook its own review.

As part of the congressional review, then-Chairman of the

Joint Chiefs of Staff, Colin Powell, in testimony explicitly

adopted by the Senate Armed Services Committee, explained the

1
The 9th Circuit recently decided Witt v. Dep't of the Air Force,
2008 U.S. App. LEXIS 10794, at *1 (9th Cir. May 21, 2008). In
Witt, the plaintiff argued that the Act violated substantive and
procedural due process and the Equal Protection Clause. See Id. at
*1-2. The district court dismissed the suit under Fed. R. Civ. P.
12(b)(6). Id. at 2. The 9th Circuit reversed the district court's
as applied due process rulings, remanding for further proceedings,
and affirmed the court's dismissal of the plaintiff's Equal
Protection claim. We agree with much of the reasoning set forth in
that opinion but also part ways with the 9th Circuit's approach in
some significant respects. Most importantly, for reasons that will
become apparent, we resolve differently the as applied substantive
due process claim brought in this case. We also note that the case
before us includes facial challenges to the Act and a First
Amendment claim.

- 4 -

rationale for the policy of separating certain homosexual members

of the military from continued service:

It is very difficult in a military setting,
where you don't get a choice of association,
where you don't get a choice of where you live,
to introduce a group of individuals who are
proud, brave, loyal, good Americans, but who
favor a homosexual lifestyle, and put them in
with heterosexuals who would prefer not to have
somebody of the same sex find them sexually
attractive, put them in close proximity and ask
them to share the most private facilities
together, the bedroom, the barracks, latrines,
and showers. I think that this is a very
difficult problem to give the military. I
think it would be prejudicial to good order and
discipline to try to integrate that in the
current military structure.

S. Rep. No. 103-112 at 283 (1993).

Congress' review culminated in the passage of the Act.

See National Defense Authorization Act for Fiscal Year 1994, Pub.

L. No. 103-160, 107 Stat. 1547 § 571, codified at 10 U.S.C. § 654.

The Act opens with a series of findings that echo General Powell's

concerns: quot;military life is fundamentally different from civilian

life;quot; quot;[s]uccess in combat requires military units that are

characterized by high morale, good order and discipline, and unit

cohesion;quot; and quot;the presence in the armed forces of persons who

demonstrate a propensity or intent to engage in homosexual acts

would create an unacceptable risk to the high standards of morale,

good order and discipline, and unit cohesion that are the essence

of military capability.quot; See 10 U.S.C. § 654(a).

- 5 -

To avoid the risk to unit cohesion created by the

continued service of those who are likely to engage in a homosexual

act, the Act provides that members of the military are subject to

separation from service where one of three findings is made: (1)

the member has engaged or attempted to engage in a homosexual act;2

(2) the member has quot;state[d] that he or she is a homosexual or

words to that effect;quot; or (3) the member has married or attempted

to marry a person known to be of the same biological sex. Id. §

654(b).

If a finding is made that a member of the military has

engaged or attempted to engage in a homosexual act, the member may

avoid separation by establishing that: (1) the conduct was a

departure from the member's usual and customary behavior; (2) such

conduct is unlikely to recur; (3) such conduct was not accomplished

by use of force, coercion, or intimidation; (4) under the

particular circumstances of the case, the member's continued

presence in the military is consistent with the interests of the

military in proper discipline, good order, and morale; and (5) the

member does not have a propensity or intent to engage in a future

homosexual act. Id. § 654(b)(1)(A)-(E). Similarly, a member found

2
Homosexual act means quot;any bodily contact, actively undertaken or
passively permitted, between members of the same sex for the
purpose of satisfying sexual desire and any bodily contact which a
reasonable person would understand to demonstrate a propensity or
intent to engage in [the homosexual act previously described].quot; 10
U.S.C. § 654 (f)(3).

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to have stated, in effect, that he or she is homosexual, may avoid

separation by demonstrating quot;that he or she is not a person who

engages in, attempts to engage in, has a propensity to engage in,

or intends to engage in a homosexual act.quot; Id. § 654(b)(2).

Pursuant to authority granted by the Act, the Department

issued directives for executing separation proceedings. The

directives recite the three reasons under the Act for separation

and provide that a member's statement that he or she is a

homosexual quot;creates a rebuttable presumption that the [member]

engages in, attempts to engage in, intends to engage in, or has a

propensity to engage in a homosexual act.quot; DOD Directive 1332.40

§ E2.3 (1997). In considering whether a member has rebutted this

presumption, the military considers: (1) whether the member has

engaged in a homosexual act; (2) the member's credibility; (3)

testimony from others about the member's past conduct; (4) the

nature and circumstances of the member's statement; and (5) any

other evidence relevant to whether the member is likely to engage

in a homosexual act. Id.

II. The Complaint and Motion to Dismiss

The plaintiffs are twelve former members of the United

States military who were separated from service under the Act. The

plaintiffs' complaint asserted the following claims: (1) the Act

violates the plaintiffs' right to substantive due process on its

face and as applied; (2) the Act denies the plaintiffs equal

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protection of the law on the basis of sexual orientation; and (3)

the portion of the Act that triggers separation proceedings based

on a member's statement that he or she is homosexual violates the

right to freedom of speech.

The government moved to dismiss the plaintiffs' complaint

under Fed. R. Civ. P. 12(b)(6). The government also contended that

the plaintiffs' due process and equal protection claims failed

because the Act was subject only to rational basis review, and

Congress' quot;unit cohesionquot; justification sufficed to sustain the law

under this standard as a matter of law. It also argued that the

evidentiary use of a member's statement that he or she is

homosexual to prove that the member has engaged, intends to engage,

or has a propensity to engage in a homosexual act does not abridge

First Amendment rights.

III. The District Court Opinion

The district court began its analysis by dispatching with

the plaintiffs' as-applied due process challenges. Cook v.

Rumsfeld, 429 F. Supp. 2d 385 (D. Mass. 2006). The court

ruled that, while the complaint asserted that the plaintiffs

were bringing as-applied challenges, in fact, they pleaded no

such claims:

Although the complaint alleges that [the Act]
is unconstitutional . . . as it has been
particularly applied to each of [the
plaintiffs], their legal reasoning . . .
make[s] it clear that the constitutional
defects they perceive inhere in any application

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of the policy to homosexual service members,
rather than in the particular way the policy
might be (or might have been) applied in
specific cases. In other words, none of the
plaintiffs claim that the policy, if valid in
general, was misapplied in his or her
particular case to result in separation when a
proper application of the policy would have
allowed him or her to remain in service.
Rather, their objections . . . are that the
policy was applied, not how it was applied.
This is classically a facial challenge to the
statute, and their arguments will be evaluated
with that understanding.

Id. at 390 (emphases supplied).

The district court then turned to the plaintiffs' facial

challenges, beginning with the due process and equal protection

claims. Id. at 391-407. The court believed that the success of

these claims hinged primarily on the level of scrutiny that applies

after Lawrence. Id. at 393. The court closely analyzed Lawrence

and determined that the Supreme Court employed rational basis

review to invalidate the convictions under the Texas law against

homosexual sodomy. The court, thus, concluded that Lawrence did

not alter the applicability of rational basis review, which had

been applied in pre-Lawrence challenges to the Act. Id. at 395-96.

The court then determined, in accord with pre-Lawrence authority,

that Congress had set forth a rational reason for the statute -- to

promote unit cohesion and discipline -- and therefore the facial

due process and equal protection claims failed. Id. at 397-406.

Finally, the district court rejected the plaintiffs'

First Amendment challenge. Id. at 407-08. The court noted that

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the Act does not make a member's statement that he or she is a

homosexual a basis for separation; rather separation is mandated

only where there has been homosexual conduct or a demonstration of

a propensity or intent to engage in such conduct. Id. at 407.

Based on this understanding, the court concluded that the Act

merely provides for the quot;evidentiary usequot; of a member's statement

regarding sexual orientation and that such use does not violate the

First Amendment. Id. at 408.

Having concluded that all of the plaintiffs' claims

failed as a matter of law, the district court dismissed the

complaint with prejudice and entered a final judgment. Id. at 410.

The plaintiffs appealed.

IV. Standard of Review

We review a district court's grant of a motion to dismiss

de novo, accepting the complaint's well-pleaded facts as true and

indulging all reasonable inferences in the plaintiff's favor. SFW

Arecibo, Ltd. v. Rodriguez, 415 F.3d 135, 138-39 (1st Cir. 2005).

To survive a motion to dismiss, a complaint must allege a

quot;plausible entitlement to relief.quot; Bell Atl. Corp. v. Twombly, 127

S. Ct. 1955, 1967 (2007); Rodriguez-Ortiz v. Margo Caribe, Inc.,

490 F.3d 92, 95 (1st Cir. 2007). In reviewing a Rule 12(b)(6)

dismissal, quot;we are not wedded to the [district] court's rationale

and may affirm an order of dismissal on any basis made apparent

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from the record.quot; McCloskey v. Mueller, 446 F.3d 262, 266 (1st

Cir. 2006).

V. Discussion

On appeal, the plaintiffs challenge all aspects of the

district court's ruling. They contend that the district court

incorrectly dismissed their substantive due process and equal

protection claims because the court misunderstood Lawrence to

mandate a rational basis standard of review, rather than some form

of heightened judicial scrutiny.

In addition, the plaintiffs dispute the district court's

ruling that they did not present as-applied due process and equal

protection challenges. Finally, they posit that they sufficiently

pleaded a First Amendment challenge to the portion of the Act that

triggers separation proceeding based on a member's statement of

sexual identity because such a statement is a form of protected

speech that is punished by the Act.

A. Due Process

We agree with the parties and the district court that

interpreting Lawrence is the critical first step in evaluating the

plaintiffs' substantive due process claim. Prior to Lawrence, the

courts of appeals, relying on the Supreme Court's holding in Bowers

v. Hardwick, 478 U.S. 186 (1986) that homosexuals did not possess

a substantive due process interest in engaging in sodomy,

considered due process challenges to the Act under rational basis

- 11 -

review.3 See, e.g., Richenberg, 97 F.3d at 260-61; Thomasson, 80

F.3d at 928. But Lawrence overruled Bowers, so the post-Lawrence

standard for reviewing a substantive due process challenge to the

Act is unclear. Before addressing the district court's conclusion

that the rational basis standard continues to apply, we review

basic substantive due process principles.

It has long been held that, despite their name, the due

process clauses of the Fifth and Fourteenth Amendments quot;guarantee[]

more than fair process.quot; Troxel v. Granville, 530 U.S. 57, 65

(2000). The substantive component of due process quot;provides

heightened protection against government interference with certain

fundamental rights and liberty interests.quot; Washington v.

Glucksberg, 521 U.S. 702, 720 (1997).

The Supreme Court acts with quot;caution and restraintquot; when

classifying a particular liberty interest as triggering substantive

due process protection, Moore v. City of E. Cleveland, 431 U.S.

494, 502 (1977), because classifying an interest as protected by

due process to a quot;great extent, place[s a] matter outside the arena

of public debate and legislative action.quot; Glucksberg, 521 U.S. at

720. The Court has recognized that the quot;Nation's history, legal

3
Where no protected liberty interest is implicated, substantive due
process challenges are reviewed under the rational basis standard.
See Medeiros v. Vincent, 431 F.3d 25, 33 (1st Cir. 2005). Under
this standard, a statute passes constitutional muster so long as
the law is rationally related to a legitimate governmental
interest. Heller v. Doe, 509 U.S. 312, 320 (1993).

- 12 -

tradition, and practices provide the crucial guideposts for

responsible decisionmakingquot; in this area. Id. at 721. But it has

also recognized that while quot;history and tradition are the starting

point,quot; they are quot;not in all cases the ending point of the

substantive due process inquiry.quot; Lawrence, 539 U.S. at 572.

In Glucksberg, the Supreme Court catalogued the following

quot;liberty interestsquot; as quot;specially protectedquot; by the due process

clause: the right to marry; to have children; to direct the

education of one's children; to enjoy marital privacy; to use

contraception; to maintain bodily integrity; to choose to have an

abortion; and to refuse unwanted medical treatment. Glucksberg,

521 U.S. at 720. The question here is whether Lawrence added to

this list an adult's right quot;to engage in consensual sexual intimacy

in the home.quot; Lawrence, 539 U.S. at 567.

In Lawrence, the Court considered a substantive due

process challenge to two criminal convictions under a Texas statute

criminalizing homosexual sodomy. Id. at 564. The petitioners were

two males who had been arrested for engaging in a sexual act in one

of their apartments. Id. at 563. The statute at issue provided

that a quot;person commits an offense if he engages in deviate sexual

intercourse with another individual of the same sex.quot;4 Id. The

4
The statute defined deviate sexual conduct as quot;any contact between
any part of the genitals of one person and the mouth or anus of
another person; or the penetration of the genitals or the anus of
another person with an object.quot; Tex. Penal Code Ann. §
21.01(1)(2007).

- 13 -

Lawrence Court characterized the constitutional question as

quot;whether petitioners' criminal convictions for adult consensual

sexual intimacy in the home violate their vital interests in

liberty and privacy protected by the Due Process Clause.quot; Id. at

564.

Lawrence addressed this question by considering a line of

Supreme Court authority recognizing various due process rights that

protect the formation and perpetuation of intimate relationships.

Id. at 564. It identified Griswold v. Connecticut, 381 U.S. 479

(1965), as the quot;pertinent beginning point.quot; Griswold invalidated

a law banning the use of contraceptives by married couples because

there is due process protection for the realm of privacy implicit

in the marital relationship and bedroom. Lawrence, 539 U.S. at

564-65. From there, Lawrence discussed later cases that broadened

the interest recognized in Griswold, including Eisenstadt v. Baird,

405 U.S. 438 (1972), which invalidated a ban on contraception use

by unmarried people; Roe v. Wade, 410 U.S. 113 (1973), which

invalidated a law restricting a woman's right to abort a pregnancy;

and Carey v. Population Servs. Int'l, 431 U.S. 678 (1977), which

struck down a prohibition on the sale of contraception to persons

under sixteen years of age. Relying on these precedents, Lawrence

concluded that Supreme Court substantive due process precedent

establishes protection for quot;certain decisions regarding sexual

- 14 -

conduct [that] extend[] beyond the martial relationship.quot;

Lawrence, 539 U.S. at 565.

Lawrence used these precedents as the launching point for

its critique of Bowers. In Bowers, the Court rejected a due

process challenge to a Georgia statute similar to the one

challenged in Lawrence. Lawrence, 539 U.S. at 566. Lawrence

criticized Bowers for focusing too narrowly on the quot;right of

homosexuals to engage in sodomyquot; rather than on the broader right

of adults to engage in private, consensual sexual intimacy:

To say that the issue in Bowers was simply the
right to engage in certain sexual conduct
demeans the claim the individual [in Bowers]
put forward, just as it would demean a married
couple were it to be said that marriage is
simply about the right to have sexual
intercourse. The laws involved in Bowers and
here are, to be sure, statutes that purport to
do no more than prohibit a particular sexual
act. Their penalties and purposes, though,
have more far-reaching consequences, touching
upon the most private human conduct, sexual
behavior, and in the most private of places,
the home. The statutes do seek to control a
personal relationship that whether or not
entitled to formal recognition in law, is
within the liberty of persons to choose . . .

Id. at 566-67.

After identifying this analytical flaw in Bowers, the

Lawrence Court observed:

[A]dults may choose to enter [into personal
relationships] in the confines of their homes
and their own private lives and still retain
their dignity as free persons. When sexuality
finds overt expression in intimate conduct with

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another person, the conduct can be but one
element in a personal bond that is more
enduring. The liberty protected by the
Constitution allows homosexual persons the
right to make this choice.

Id. at 567.

Placing the final nail in Bowers' coffin, the Lawrence

Court quoted from Justice Stevens' Bowers dissent that quot;'individual

decisions by married persons, concerning the intimacies of their

physical relationship, even when not intended to produce offspring,

are a form of liberty protected by the Due Process Clause.

Moreover, this protection extends to intimate choices by unmarried

as well as married persons.'quot; Id. at 578 (quoting Bowers, 478 U.S.

at 216 (Stevens, J., dissenting)). In formally overruling Bowers,

the Court stated that quot;Justice Stevens' analysis . . . should have

been controlling in Bowers and should control here.quot; Id.

Having dispatched with Bowers, the Court turned to

analyze the constitutionality of the convictions under the Texas

statute:

The present case does not involve minors. It
does not involve persons who might be injured
or coerced or who are situated in relationships
where consent might not easily be refused. It
does not involve public conduct or
prostitution. It does not involve whether the
government must give formal recognition to any
relationship that homosexual persons seek to
enter. The case does involve two adults who,
with full and mutual consent from each other,
engaged in sexual practices common to a
homosexual lifestyle. The petitioners are
entitled to respect for their private lives.
The State cannot demean their existence or

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control their destiny by making their private
sexual conduct a crime. Their right to liberty
under the Due Process Clause gives them the
full right to engage in their conduct without
intervention from government. quot;It is a promise
of the Constitution that there is a realm of
personal liberty which the government may not
enter.quot; The Texas statute furthers no
legitimate state interest which can justify
its intrusion into the personal and private
life of the individual.

Id. (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505

U.S. 833, 847 (1992)).

Courts and commentators interpreting Lawrence diverge

over the doctrinal approach employed to invalidate the petitioners'

convictions. Some have read Lawrence to apply a rational basis

approach.5 Others see the case as applying strict scrutiny.6 And

5
Sylvester v. Fogley, 465 F.3d 851, 858 (8th Cir. 2006); Muth v.
Frank, 412 F.3d 808, 818 (7th Cir. 2005); Williams v. Att'y Gen. of
Ala., 378 F.3d 1232, 1238 (11th Cir. 2004); Lofton v. Sec'y of
Dept. of Children & Family Servs., 358 F.3d 804 (11th Cir. 2004);
Witt v. U.S. Dept. of Air Force, 444 F. Supp. 2d 1138, 1143 (W.D.
Wash. 2006); United States v. Extreme Assocs., Inc., 352 F. Supp.
2d 578, 591 (W.D. Pa. 2005); Conaway v. Deane, 401 Md. 219, 310
(Md. 2007); State v. Lowe, 861 N.E.2d 512, 517 (Ohio 2007); (Ex
parte Morales, 212 S.W.3d 483, 493 (Tex. App. 2006); State v.
Limon, 122 P.3d 22, 29 (Kan. 2005); Martin v. Ziherl, 607 S.E.2d
367, 370 (Va. 2005); State v. Clinkenbeard, 123 P.3d 872, 878
(Wash. App. 2005).
6
Williams, 378 F.3d at 1252 (Barkett, J., dissenting); see Fields
v. Palmdale Sch. Dist., 271 F. Supp. 2d 1217, 1221 (C.D. Cal. 2003)
(including Lawrence within citations of precedent establishing
fundamental rights); Doe v. Miller, 298 F. Supp. 2d 844, 871 (S.D.
Iowa 2004), rev'd on other grounds, 405 F.3d 700 (8th Cir. 2005)
(same); Hudson Valley Black Press v. IRS, 307 F. Supp. 2d 543, 548
(S.D.N.Y. 2004) (same); see also Donald H.J. Hermann, Pulling the
Fig Leaf Off the Right of Privacy: Sex and the Constitution,54
DePaul L. Rev. 909, 969 (2005); Laurence H. Tribe, Lawrence v.
Texas: The Fundamental Right that Dare Not Speak Its Name, 117

- 17 -

a third group view the case as applying a balancing of state and

individual interests that cannot be characterized as strict

scrutiny or rational basis.7 Lawrence's doctrinal approach is

quot;difficult to pin down.quot; Nan D. Hunter, Living with Lawrence, 88

Minn. L. Rev. 1103 (2004). But we are persuaded that Lawrence did

indeed recognize a protected liberty interest for adults to engage

in private, consensual sexual intimacy and applied a balancing of

constitutional interests that defies either the strict scrutiny or

rational basis label.

There are at least four reasons for reading Lawrence as

recognizing a protected liberty interest. First, Lawrence relies

on the following due process cases for doctrinal support:

Griswold, Eisentstadt, Roe, Carey, and Casey. 539 U.S. at 565-66.

Each case resulted in the Supreme Court recognizing a due process

right to make personal decisions related to sexual conduct that

mandated the application of heightened judicial scrutiny. Id. It

would be strange indeed to interpret Lawrence as not recognizing a

Harv. L. Rev. 1893, 1917 (2004).
7
United States v. Marcum, 60 M.J. 198 (U.S. Armed Forces 2004);
Nancy C. Marcus, Beyond Romer and Lawrence: The Right to Privacy
Comes out of the Closet, 15 Colum. J. Gender & L. 355 (2006); John
G. Culhane, Writing on, Around and Through Lawrence v. Texas, 38
Creighton L. Rev. 493 (2005); Jerald A. Sharum, Comment,
Controlling Conduct: The Emerging Protection of Sodomy in the
Military, 69 Alb. L. Rev. 1195, 1202 (2006); Donald L. Beschle,
Lawrence Beyond Gay Rights: Taking the Rationality Requirement for
Justifying Criminal Statutes Seriously, 53 Drake L. Rev. 231, 276
(2005).

- 18 -

protected liberty interest when virtually every case it relied upon

for support recognized such an interest.

Second, the language employed throughout Lawrence

supports the recognition of a protected liberty interest. Lawrence

associated the right at issue with the core constitutional rights

of quot;freedom of thought, belief, and expression,quot; rights which

undoubtedly mandate special protection under the Constitution. Id.

at 563. It also stated that quot;liberty gives substantial protection

to adult persons in deciding how to conduct their private lives in

matters pertaining to sex.quot; Id. at 572 (emphasis supplied). And

it concluded its analysis by stating that the quot;right to liberty

under the Due Process Clausequot; allowed the petitioners to engage in

quot;private sexual conductquot; because quot;'[i]t is a promise of the

Constitution that there is a realm of personal liberty which the

government may not enter.'quot; Id. at 578 (quoting Casey, 505 U.S. at

847). Such language strongly suggests that Lawrence identified a

protected liberty interest.

Third, in overruling Bowers, Lawrence relied on Justice

Stevens' Bowers dissent as stating the controlling principles. Id.

at 578. The passage of Justice Stevens' dissent quoted in Lawrence

stated that quot;individual decisions by married persons, concerning

the intimacies of their physical relationship, even when not

intended to produce offspring, are a form of liberty protected by

the Due Process Clause . . . . Moreover, this protection extends to

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intimate choices by unmarried as well as married persons.quot; Id.

In support of this proposition, Justice Stevens cited Griswold,

Eisenstadt and Carey. Bowers, 478 U.S. at 216 (Stevens, J.,

dissenting). As discussed above, these are due process cases that

recognize protected liberty interests. Furthermore, in the very

next passage of Justice Stevens' dissent, he described these cases

as establishing rights that are quot;fundamentalquot; and placed the right

of adults to engage in private intimate conduct in the same

category. Id. It is impossible to read Lawrence as declining to

recognize a protected liberty interest without ignoring the Court's

statement that Justice Stevens' Bowers dissent was controlling.

Finally, if Lawrence had applied traditional rational

basis review (the appropriate standard if no protected liberty

interest was at stake, see e.g., Medeiros, 431 F.3d at 33), the

convictions under the Texas statute would have been sustained. The

governmental interest in prohibiting immoral conduct was the only

state interest that Texas offered to justify the statute.

Lawrence, 539 U.S. at 582. It is well established that a

quot;legislature [can] legitimately act . . . to protect the societal

interest in order and morality.quot; Barnes v. Glen Theatre, Inc., 501

U.S. 560, 569 (1991) (quoting Paris Adult Theatre I v. Slaton, 413

U.S. 49, 61 (1973)). Thus, Lawrence's holding can only be squared

with the Supreme Court's acknowledgment of morality as a rational

basis by concluding that a protected liberty interest was at stake,

- 20 -

and therefore a rational basis for the law was not sufficient.

Taking into account the precedent relied on by Lawrence,

the tenor of its language, its special reliance on Justice Stevens'

Bowers dissent, and its rejection of morality as an adequate basis

for the law in question, we are convinced that Lawrence recognized

that adults maintain a protected liberty interest to engage in

certain quot;consensual sexual intimacy in the home.quot; The district

court, relying on cases from other circuits, read Lawrence as

applying rational basis review. We, however, do not find any of

the four primary reasons supporting this view persuasive. See Muth

v. Frank, 412 F.3d 808, 817-18 (7th Cir. 2005); Lofton v. Sec'y of

the Dep't of Children & Family Servs., 358 F.3d 804, 815-17 (11th

Cir. 2004).

First, the argument has been made that Lawrence nowhere

explicitly stated that the right at issue was quot;fundamentalquot; and

therefore the opinion cannot be read as recognizing a fundamental

right under the due process clause. See Cook, 429 F. Supp. 2d at

394. While it is true that Lawrence nowhere used the word

quot;fundamentalquot; to describe the interest at stake, there are several

Supreme Court cases that have recognized protected liberty

interests without using this word. For example, in Washington v.

Harper, 494 U.S. 210, 223 (1990), the Supreme Court held that a

state prisoner quot;retains a significant liberty interestquot; under the

due process clause to avoid the unwanted administration of certain

- 21 -

drugs. And in Parham v. J.R., 442 U.S. 584, 600 (1979), the Court

described a child's quot;substantial liberty interestquot; in not being

confined unnecessarily for medical treatment. See also Casey, 505

U.S. at 851 (describing the interest as a quot;protected libertyquot;);

Cruzan v. Director of Mo. Dept. of Health, 497 U.S. 261, 278 (1990)

(describing the interest as a quot;constitutionally protected liberty

interestquot;); Youngberg v. Romeo, 457 U.S. 307, 315 (1982)

(describing the interests as quot;liberty interestsquot;). It is thus

clear that the Supreme Court does not always use the word

quot;fundamentalquot; when it wishes to identify an interest protected by

substantive due process.

Second, it has been maintained that Lawrence could not

have identified a protected liberty interest because the Supreme

Court did not engage in a thorough analysis of the quot;Nation's

history and traditionquot; as required under Glucksberg. Muth, 412

F.3d at 817; Williams, 378 F.3d at 1236; Lofton, 358 F.3d at 816-

17. This argument is based on the mistaken premise that the only

history relevant to the substantive due process inquiry is a

history demonstrating affirmative government action to protect the

right in question. But Glucksberg does not establish such a

requirement. Lawrence engaged in a thorough historical analysis

identifying the lack of a long history of government action to

punish the private consensual, intimate conduct of homosexuals.

This sort of historical analysis is not inconsistent with Supreme

- 22 -

Court precedent in this area. Indeed, if affirmative government

action protecting a right were required to trigger substantive due

process protection, at least some of the due process cases

recognizing a liberty interest would have come out differently

because there was no established history of government protection

for the right to have an abortion or to use contraception. See

Roe, 410 U.S. at 132-41 (reviewing history of abortion law to show

that laws restricting abortion are of recent vintage but not

showing any history of affirmative government action to protect the

right to an abortion); see also Williams, 378 F.3d at 1258-59.

Moreover, to the extent that Lawrence did not adhere to

the Glucksberg approach of locating the right to private,

consensual adult intimacy in the Nation's history and tradition, it

explicitly disavowed the exclusivity of this approach. See

Lawrence, 539 U.S. at 572 (quot;history and tradition are the starting

but not in all cases the ending point of the substantive due

process inquiry.quot;). In this regard, the Lawrence Court stated:

[W]e think that our laws and traditions in the
past half century are of most relevance here.
These references show an emerging awareness
that liberty gives substantial protection to
adult persons in deciding how to conduct their
private lives in matters pertaining to sex.

Id. at 571-72. Thus, Lawrence recognized that, in at least some

circumstances, the consideration of recent trends and practices is

relevant to defining the scope of protected liberty.

Third, it has been suggested that the Lawrence majority's

- 23 -

refusal to respond to Justice Scalia's Lawrence dissent, in which

he argued that the majority had not recognized a protected liberty

interest, indicates that the majority agreed with the dissent's

analysis. See Sylvester v. Fogley, 465 F.3d 851, 858 (8th Cir.

2006). The district court relied heavily on this point, observing

that quot;it might be expected that if [Justice Scalia's dissent]

wrongly characterized a principal holding of the case, the majority

would have answered and corrected it.quot; Cook, 429 F. Supp. 2d at

394.

This is a possible explanation for the majority's

silence, but it is not the only explanation. It is equally

possible that the Lawrence majority believed that the text of its

opinion stood for itself and that there was little to be gained by

debating Justice Scalia on this point. Cf. Cent. Bank of Denver

N.A. v. First Interstate Bank of Denver N.A., 511 U.S. 164, 187

(1994) (quot;Congressional inaction lacks persuasive significance

because several equally tenable inferences may be drawn from such

inaction. . . .quot;). Given the equally possible, but conflicting,

inferences that can be drawn from the majority's lack of response

to Justice Scalia's dissent, we think that there is little to be

gleaned about Lawrence's meaning from it.

Finally, it has been claimed that Lawrence's conclusion

that quot;[t]he Texas statute furthers no legitimate state interest

which can justify its intrusion into the personal and private life

- 24 -

of the individualquot; indicates that Lawrence did not recognize a

protected liberty interest. Sylvester, 465 F.3d at 857; Muth, 412

F.3d at 818; Lofton, 358 F.3d at 817 (emphasis supplied). This

argument is premised on the notion that the words quot;legitimate state

interestquot; indicate the application of rational basis review, which

is not the proper standard where a protected liberty interest is

implicated. As the district court stated, quot;[t]he use of the

appropriate adjective is telltale to constitutional lawyers. If

the Lawrence court had been evaluating the constitutionality of the

Texas statute under the more exacting standard where fundamental

interests are at stake, it would instead have asked whether the

state interest was compelling, rather than whether it was

legitimate.quot; Cook, 429 F. Supp. 2d at 395.

We take a different view. A law survives rational basis

review so long as the law is rationally related to a legitimate

governmental interest. E.g., Nordlinger v. Hahn, 505 U.S. 1, 11-12

(1992). Rational basis review does not permit consideration of the

strength of the individual's interest or the extent of the

intrusion on that interest caused by the law; the focus is entirely

on the rationality of the state's reason for enacting the law. See

Heller v. Doe, 509 U.S. 312, 324 (1993) (a law quot;fails rational-

basis reviewquot; only when it quot;rests on grounds wholly irrelevant to

the achievement of the State's objectivesquot; or the State's

objectives are themselves invalid). Thus, the argument that

- 25 -

Lawrence did not recognize a protected liberty interest because it

used the words quot;legitimate state interestquot; divorces these word from

context -- a context which shows that Lawrence did not employ

traditional rational basis review since the Lawrence Court's

analysis focused on the individual's liberty interest. This view

is supported by Supreme Court cases that have recognized protected

liberty interests in the face of quot;legitimate state interests.quot;

Casey, 505 U.S. at 853 (recognizing that even though protected

liberty interest was at stake, quot;the separate States could act in

some degree to further their own legitimate interests in protecting

prenatal lifequot;); Addington v. Texas, 441 U.S. 418, 425-26 (1979)

(balancing the quot;individual's interest in not being involuntarily

confined indefinitelyquot; against the state's quot;legitimate interest

under its parens patriae powers in providing care to its citizens

who are unable because of emotional disorders to care for

themselvesquot;).

To say, as we do, that Lawrence recognized a protected

liberty interest for adults to engage in consensual sexual intimacy

in the home does not mean that the Court applied strict scrutiny to

invalidate the convictions. Several pre-Lawrence cases that have

recognized protected liberty interests did not mandate that the

challenged law be quot;narrowly tailored to serve a compelling state

interestquot; -- the strict scrutiny standard. For example, in Sell v.

United States, 539 U.S. 166, 179 (2003), the Court recognized a

- 26 -

quot;constitutionally protected liberty interest [for a criminal

defendant] in avoiding the unwanted administration of antipsychotic

drugsquot; and then applied a standard of review less demanding than

strict scrutiny by asking whether administering the drugs was

quot;necessary significantly to further important governmental trial-

related interests.quot; And similarly, in Casey, 505 U.S. at 877, the

Supreme Court reaffirmed a woman's fundamental right to choose to

have an abortion but applied the quot;undue burdenquot; test which balanced

the state's legitimate interest in potential human life against the

extent of the imposition on the woman's liberty interest. See also

Troxel, 530 U.S. at 67-75 (invalidating law burdening due process

interest in parental autonomy without applying either rational

basis or strict scrutiny); Riggins v. Nevada, 504 U.S. 127, 135-36

(1990) (balancing an individual's interest in refusing psychotropic

drugs against the government's interest in trying a competent

criminal defendant for a violent crime); Cruzan, 497 U.S. at 278-79

(balancing quot;protected liberty interestquot; in refusing unwanted

medical treatment against the government interest in promoting

life); Harper, 494 U.S. at 223 (weighing a prisoner's interest in

refusing drugs against the government's interest in promoting a

safe prison environment); Youngberg, 457 U.S. at 320-22 (balancing

liberty interest of an individual to avoid bodily restraint against

the State's asserted reason for the restraint).

Lawrence is, in our view, another in this line of Supreme

- 27 -

Court authority that identifies a protected liberty interest and

then applies a standard of review that lies between strict scrutiny

and rational basis. In invalidating the convictions, the Lawrence

Court determined that there was no legitimate state interest that

was adequate to quot;justifyquot; the intrusion on liberty worked by the

law. 539 U.S. at 578. In other words, Lawrence balanced the

strength of the state's asserted interest in prohibiting immoral

conduct against the degree of intrusion into the petitioners'

private sexual life caused by the statute in order to determine

whether the law was unconstitutionally applied. See Casey, 505

U.S. at 873 (quot;[N]ot every law which makes a right more difficult to

exercise is, ipso facto, an infringement of that right.quot;).

Having defined the nature of the constitutional review

mandated by Lawrence, we now consider whether the plaintiffs'

facial due process challenge to the Act can survive a motion to

dismiss.

quot;A facial challenge to a legislative Act is, of course,

the most difficult challenge to mount successfully, since the

challenger must establish that no set of circumstances exists under

which the Act would be valid. The fact that [an Act] might operate

unconstitutionally under some conceivable set of circumstances is

insufficient to render it wholly invalid . . . .quot; United States

v. Salerno, 481 U.S. 739, 745 (1987); see also Comfort v. Lynn Sch.

Comm., 418 F.3d 1, 12 (1st Cir. 2005) (en banc). The Supreme Court

- 28 -

has recently emphasized the limits on facial challenges in the

substantive due process context. See Gonzales v. Carhart, 127 S.

Ct. 1610, 1639 (2007).

The plaintiffs' facial challenge fails. Lawrence did not

identify a protected liberty interest in all forms and manner of

sexual intimacy. Lawrence recognized only a narrowly defined

liberty interest in adult consensual sexual intimacy in the

confines of one's home and one's own private life. Lawrence, 539

U.S. at 567. The Court made it abundantly clear that there are

many types of sexual activity that are beyond the reach of that

opinion. Id., at 578. Here, the Act includes such other types of

sexual activity. The Act provides for the separation of a service

person who engages in a public homosexual act or who coerces

another person to engage in a homosexual act. Both of these forms

of conduct are expressly excluded from the liberty interest

recognized by Lawrence. Id.

The plaintiffs' as-applied challenge, on the other hand,

presents a more difficult question. The plaintiffs point out that

the Act could apply to some conduct that falls within the zone of

protected liberty identified by Lawrence. The Act, for example,

could cover homosexual conduct occurring off base between two

consenting adults in the privacy of their home.8

8
The district court did not reach the merits of the plaintiffs' as-
applied due process challenge to the Act. It concluded that,
although the plaintiffs tried to plead as-applied challenges, the

- 29 -

Before addressing the significance of this observation,

we pause to recognize the unique context in which the liberty

interest at stake in this case arises. We are reviewing an

exercise of Congressional judgment in the area of military affairs.

The deferential approach courts take when doing so is well-

established. Loving v. United States, 517 U.S. 748, 768 (1996)

(noting that the Supreme Court gives Congress quot;the highest

deferencequot; in ordering military affairs) (citation omitted); Weiss

v. United States, 510 U.S. 163, 177 (1994) (recognizing that the

Supreme Court quot;[adheres] to [the] principle of deference in a

variety of contexts [such as] where the constitutional rights of

complaint failed to identify facts showing that the Act was
quot;misappliedquot; in certain cases. We view differently the necessary
factual predicate for an as-applied constitutional challenge to the
Act. A claim that the Act was quot;misappliedquot; in a particular case is
actionable, if at all, under the Administrative Procedures Act.
See Richenberg v. Perry, 97 F.3d 256, 263 (8th Cir. 1996) (assuming
that a review of separation decision under the Act is reviewable
under the APA). But this is not the plaintiffs' claim. The
plaintiffs allege that, even though the Act was properly
administered according to its terms to separate each of them from
service, the Act cannot be constitutionally applied in their
particular cases because the application unconstitutionally
infringes on their Lawrence interest. As-applied challenges quot;'are
the basic building blocks of constitutional adjudication'quot; because
they relieve the court of having quot;to consider every conceivable
situation which might possibly arise in the application of complex
and comprehensive legislation.quot; Carhart, 127 S. Ct. at 1639. A
plaintiff asserts an as-applied challenge by claiming that a
statute is unconstitutional as-applied to his or her particular
conduct, even though the statute may be valid as to other parties.
See Daggett v. Comm'n of Gov. Ethics & Election Practices, 205 F.3d
445, 472 (1st Cir. 2000). The plaintiffs have pleaded classic as-
applied challenges here because they claim that the Act is
unconstitutional as applied to them, even though the Act may be
constitutional as applied to others.

- 30 -

servicemen [are] implicatedquot;); Rostker v. Goldberg, 453 U.S. 57, 70

(1981) (quot;[J]udicial deference . . . is at its apogee when

legislative action under the congressional authority to raise and

support armies and make rules and regulations for their governance

is challenged.quot;).

The Supreme Court has articulated essentially two reasons

for this deference. The first involves institutional competence.

The Court has remarked:

It is difficult to conceive of an area of
governmental activity in which courts have
less competence. The complex, subtle, and
professional decisions as to the composition,
training, equipping and control of a military
force are essentially professional military
judgments, subject always to civilian control
of the Legislative and Executive Branches.

Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see also N.D. v. United

States, 495 U.S. 423, 443 (1990) (noting that where confronted with

questions relating to military operations the Court quot;properly

defer[s] to the judgment of those who must lead our Armed Forces in

battlequot;).

The second relates to the constitutional power of

Congress to quot;raise and support armies and to make all laws

necessary and proper to that end.quot; United States v. O'Brien, 391

U.S. 367, 377 (1968). The Court has described this power as quot;broad

and sweeping,quot; id., and has further noted Congress' accompanying

responsibility for quot;the delicate task of balancing the rights of

servicemen against the needs of the military.quot; Solorio v. United

- 31 -

States, 488 U.S. 435, 447 (1987).

It is unquestionable that judicial deference to

congressional decision-making in the area of military affairs

heavily influences the analysis and resolution of constitutional

challenges that arise in this context. The Court's examination of

the equal protection challenge leveled in Rostker provides an

example. That case concerned a statute that required only males to

register for selective service. The lower court had invalidated

the statute as unlawful gender discrimination. 453 U.S. at 63.

In reversing, the Court focused its analysis entirely on the

legislative record that led to Congress' action. The Court

discussed, in detail, the process Congress employed in considering

the issue, its consultation with all interested parties, its

serious consideration of the issues, including the constitutional

implications, and its clear articulation of the basis for its

decision. Id. at 72-80. The Court then declared the district

court's analysis striking down the law quot;quite wrongquot; because the

district court undertook quot;an independent evaluation of evidence

rather than adopting an appropriately deferential examination of

Congress' evaluation of the evidence.quot; Id. at 82-83.

The Court's treatment of First Amendment and Due Process

challenges brought in this area similarly manifests this deference

to congressional judgment. In Parker v. Levy, 417 U.S. 733 (1974),

a case involving vagueness and overbreadth challenges to provisions

- 32 -

of the Uniform Code of Military Justice, the Court stated that

quot;Congress is permitted to legislate both with greater breadth and

with greater flexibility when the statute governs military

society.quot; Id. at 755. In Weiss, the Court reemphasized that when

dealing with due process challenges quot;the tests and limitations

[associated with those challenges] may differ because of the

military context.quot; 510 U.S. at 177 (citing Rostker, 453 U.S. at

67).9

Fully apprised of the constraints on our constitutional

inquiry when considering constitutional challenges in the military

context, we now examine both the process by which Congress passed

the Act and the rationale Congress advanced for it.

Congress' process for developing the Act was involved and

it included sustained consideration of the Act's necessity and its

impact on constitutional rights. After President Clinton was

inaugurated, he directed the Secretary of Defense to submit a draft

Executive Order quot;ending discrimination on the basis of sexual

orientation in determining who may serve in the Armed Services.quot;

Memorandum on Ending Discrimination in the Armed Forces, 1 Pub.

9
Other examples of the deferential approach the Court has taken
when analyzing constitutional challenges in the military context
include: Goldman v. Weinberger, 475 U.S. 503, 508 (1986) (free
exercise of religion); Chappell v. Wallace, 462 U.S. 296, 300-05
(1983) (racial discrimination); Brown v. Glines, 444 U.S. 348, 357-
60 (1980) (free expression); Middendorf v. Henry, 425 U.S. 25, 43
(1976) (right to counsel in summary court-martial proceeding).
Solorio, 483 U.S. at 448 (collecting cases).

- 33 -

Papers 23 (Jan. 29, 1993). The President instructed the Secretary

to consult with the military's professional leadership and others

concerned with the issue. Id. While this review was in progress,

an interim policy was imposed that ended the practice of asking new

recruits to confirm that they were heterosexual.

Congress quickly intervened. A few weeks after President

Clinton was sworn in, Congress passed a provision calling for a

review of the military's approach to homosexuals serving in the

military by the Secretary of Defense and the Senate Armed Services

Committee. See Pub. L. 103-3 § 601, 107 Stat. 6, 28-29 (1993).

Subsequently, the Department and congressional committees

engaged in an exhaustive policy review. The Senate and House Armed

Services Committees conducted fourteen days of hearings, heard more

than fifty witnesses, and traveled to military facilities to

investigate the issue. The Committees heard from witnesses with a

wide range of views and various backgrounds, including the

Secretary of Defense, the Chairman of the Joint Chiefs of Staff,

military and legal experts, enlisted personnel, officers, and

public policy activists. See Assessment of the Plan to Lift the

Ban on Homosexuals in the Military: Hearings Before the Military

Forces and Personnel Subcomm. of the House Comm. on Armed Services,

103 Cong., 1st Sess. (1993); Policy Concerning Homosexuality in the

Armed Forces: Hearings Before the Senate Comm. on Armed Services,

103 Cong., 1st Sess. (1993); Policy Implications of Lifting the Ban

- 34 -

on Homosexuals in the Military: Hearings Before the House Comm. on

Armed Servs., 103 Cong., 1st Sess. (1993).

While this congressional review was ongoing, the

Department conducted its own review. The Department convened a

military working group comprised of senior officers, commissioned

a RAND Corporation study, studied the history of the military's

response to social change, and consulted legal experts.

In July 1993, President Clinton announced a new policy

for the service of homosexuals in the military. Under the policy,

applicants for military service would not be asked their sexual

orientation but, once inducted into service, a member could be

separated for homosexual conduct. 1 Pub. Papers 1111 (July 19,

1993).

A few weeks after the President's announcement, the House

and Senate Armed Services Committees proposed to codify the

military's policy. The Senate Report, in support of this effort,

stated that the Committee was acting only after it had considered

quot;a wide range of experiences, including those of current and former

servicemembers who have publicly identified themselves as gay or

lesbianquot; and after having quot;carefully considered all points of

view.quot; S. Rep. 103-112 at 270. Similarly, the House Committee

reported that its recommendation was based on quot;an extensive hearing

record as well as full consideration of the extended public debate

on this issue . . .quot; H.R. Rep. 103-200 at 287 (1993) reprinted in

- 35 -

1993 U.S.C.C.A.N 2073 at 2074. The Senate Report also focused

explicitly on the effect that the Act could have on constitutional

rights of homosexuals, concluding that quot;if the Supreme Court should

reverse its ruling in Bowers and hold that private consensual

homosexual acts between adults may not be prosecuted in civilian

society, this would not alter the committee's judgment as to the

effect of homosexual conduct in the armed forces.quot; S. Rep. 103-112

at 287.

Prior to the enactment of the Act, the full House and

Senate debated the measure and considered floor amendments. In

particular, each house rejected amendments that would have

permitted the military to develop whatever policy it deemed

appropriate and would have allowed the Department to resume asking

applicants to state their sexual orientation. 139 Cong. Rec.

S11168-11228 (Sept. 9, 1993); 139 Cong. Rec. H7084-86 (Sept. 29,

1993). The Act became law in November 1993, and, as stated

earlier, the Act expressly identified its purpose as preserving

quot;high standards of morale, good order and discipline, and unit

cohesionquot; in the military. 10 U.S.C. § 654(a)(15).

The circumstances surrounding the Act's passage lead to

the firm conclusion that Congress and the Executive studied the

issues intensely and from many angles, including by considering the

constitutional rights of gay and lesbian service members. S. Rep.

103-112 at 286-87. Congress ultimately concluded that the

- 36 -

voluminous evidentiary record supported adopting a policy of

separating certain homosexuals from military service to preserve

the quot;high morale, good order and discipline, and unit cohesionquot; of

the troops.

Acknowledging the government interest identified in this

case, one that our deferential posture requires us to take at face

value, as-applied challenges to the Act must fail as well.

Here, as in Rostker, there is a detailed legislative

record concerning Congress' reasons for passing the Act. This

record makes plain that Congress concluded, after considered

deliberation, that the Act was necessary to preserve the military's

effectiveness as a fighting force, 10 U.S.C. § 654(a)(15), and

thus, to ensure national security. This is an exceedingly weighty

interest and one that unquestionably surpasses the government

interest that was at stake in Lawrence. See Lawrence, 539 U.S. at

585 (O'Connor, J., concurring).

Every as-applied challenge brought by a member of the

armed forces against the Act, at its core, implicates this

interest. Every member of the armed forces has one fact in common

-- at a moment's notice he or she may be deployed to a combat area.

10 U.S.C. § 654(a)(11). The conditions of service in such an area

bring into play the animating concerns behind the Act, namely,

maintaining the morale and unit cohesion that the military deems

essential to an effective fighting force. See 10 U.S.C §

- 37 -

654(a)(12), (15). Accordingly, we have no choice but to dismiss

the plaintiffs' as-applied challenge.

To be sure, deference to Congressional judgment in this

area does not mean abdication. Rostker, 453 U.S. at 67. But where

Congress has articulated a substantial government interest for a

law, and where the challenges in question implicate that interest,

judicial intrusion is simply not warranted. See id. at 68 (quot;[W]e

must be particularly careful not to substitute our judgment of what

is desirable for that of Congress, or our own evaluation of

evidence for a reasonable evaluation by the Legislative Branch.quot;).10

B. Equal Protection

In addition to their due process claim, the plaintiffs

assert that the Act is unconstitutional under equal protection

principles.11 Unlike the due process claim, which is premised on

the constitutional protection afforded all citizens to engage in

certain sexual conduct, the equal protection claim is based on the

10
In Witt, the 9th Circuit resolved an as-applied, post-Lawrence
substantive due process challenge to the Act differently then we do
here. 2008 U.S. App. LEXIS 10794, at *36. The 9th Circuit relied
on the Supreme Court’s pre-Lawrence decision in Sell as a
touchstone for its due process inquiry. Id. At 29-30. Although we
find Sell instructive in the sense that it illustrates the Supreme
Court’s application of an intermediate level of scrutiny, we do not
find Sell especially helpful in analyzing this statute regulating
military affairs.
11
The Fifth Amendment does not contain an equal protection clause
but the due process clause has been interpreted to include an equal
protection component. See Bolling v. Sharpe, 347 U.S. 497, 499
(1954).

- 38 -

Act's differential treatment of homosexual military members versus

heterosexual military members. See generally Erwin Chemerinsky,

Constitutional Law: Principles and Policies § 10.1.1 (2d Ed. 2002)

(explaining the difference between a due process and an equal

protection challenge). The district court rejected this claim

under rational basis review.

Under equal protection jurisprudence, a governmental

classification aimed at a quot;suspect classquot; is subject to heightened

judicial scrutiny. See Mills v. State of Me., 118 F.3d 37, 46 (1st

Cir. 1997). Classifications that target non-suspect classes are

subject only to rational basis review. Id. The plaintiffs contend

that the district court erred by applying rational basis review

because the Supreme Court's decisions in Romer v. Evans, 517 U.S.

620 (1996), and Lawrence mandate a more demanding standard.

In Romer, the Supreme Court invalidated, on equal

protection grounds, a Colorado constitutional amendment which

prohibited the enactment of any measure designed to protect

individuals due to their sexual orientation. The Court analyzed

the constitutionality of the amendment through the prism of

rational basis, asking whether the classification bore quot;a rational

relation to some legitimate end.quot; Id. at 631. Applying this

standard, the Court concluded that the amendment was

unconstitutional because the only possible justification for the

amendment was quot;animosity toward the class of persons affected,quot;

- 39 -

which does not constitute even quot;a legitimate governmental

interest.quot; Id. at 634-35.

Romer, by its own terms, applied rational basis review.

The ground for decision was the notion that where quot;a law is

challenged as a denial of equal protection, and all that the

government can come up with in defense of the law is that the

people who are hurt by it happen to be irrationally hated or

irrationally feared, . . . it is difficult to argue that the law is

rational if 'rational' in this setting is to mean anything more

than democratic preference.quot; Milner v. Apfel, 148 F.3d 812, 817

(7th Cir. 1998) (Posner, J.). Romer nowhere suggested that the

Court recognized a new suspect class. Absent additional guidance

from the Supreme Court, we join our sister circuits in declining to

read Romer as recognizing homosexuals as a suspect class for equal

protection purposes. Scarborough v. Morgan County Bd. of Ed., 470

F.3d 250, 261 (6th Cir. 2006); Citizens for Equal Prot. v. Bruning,

455 F.3d 859, 866 (8th Cir. 2006); Johnson v. Johnson, 385 F.3d

503, 532 (5th Cir. 2004); Lofton, 358 F.3d at 818; Veney v. Wyche,

293 F.3d 726, 731-32 (4th Cir. 2002); Holmes, 124 F.3d at 1132.

Lawrence does not alter this conclusion. As discussed

earlier, Lawrence was a substantive due process decision that

recognized a right in all adults, regardless of sexual orientation,

to engage in certain intimate conduct. Indeed, the Lawrence Court

explicitly declined to base its ruling on equal protection

- 40 -

principles, even though that issue was presented. See Lawrence,

539 U.S. at 574-75. Thus, there is no basis for arguing that

Lawrence changed the standard of review applicable to a legislative

classification based on sexual orientation.

As neither Romer nor Lawrence mandate heightened scrutiny

of the Act because of its classification of homosexuals, the

district court was correct to analyze the plaintiffs' equal

protection claim under the rational basis standard. As stated

earlier, an enactment survives this level of scrutiny so long as

the quot;classification drawn by the statute is rationally related to

a legitimate state interest.quot; City of Cleburne, Tex. v. Cleburne

Living Ctr., 473 U.S. 432, 440 (1985).

The plaintiffs maintain that, even under this standard,

their claim survives because they will be able to demonstrate that

the Act was based on irrational animus and therefore is invalid

under Romer. We disagree. Congress has put forward a non-animus

based explanation for its decision to pass the Act. Given the

substantial deference owed Congress' assessment of the need for the

legislation, the Act survives rational basis review.12 Able, 155

F.3d at 635-37; Holmes, 124 F.3d at 1132-40; Richenberg, 97 F.3d at

262; Thomasson, 80 F.3d at 292.

In sum, the district court was correct to reject the

12
The plaintiffs acknowledge that a conclusion that the Act survives
rational basis review defeats their facial and as-applied equal
protection challenges.

- 41 -

plaintiffs' equal protection claim because homosexuals are not a

suspect class and the legitimate interests Congress put forward are

rationally served by the Act.

C. First Amendment

The plaintiffs' final challenge attacks the portion of

the Act that subjects a member to possible separation for making a

statement identifying himself or herself as a homosexual. The

plaintiffs assert that they have adequately stated a claim that

this aspect of the Act violates the First Amendment because it

subjects a member to separation for stating his or her sexual

identity.13 The plaintiffs maintain that this aspect of the Act is

invalid because it restricts the content of the plaintiffs' speech

and forces them to pretend that they are heterosexual.

There is no question that members of the military are

13
For the first time on appeal, the plaintiffs contend that a wide
variety of expressive activities could trigger discharge
proceedings. They argue, quot;A service member might wave a rainbow
flag or wear a pink triangle, or he might state that he opposes
'Don't Ask, Don't Tell.' Under § 654 . . . these possibilities and
more could force the service member -- whether straight or gay --
into discharge proceedings where he must prove that he has no
propensity to engage in homosexual conduct.quot; None of the
plaintiffs contend that they were separated from service because
they participated in expressive activities. Moreover, the explicit
terms of the Act do not indicate that such activities could trigger
separation proceedings and the government has stipulated they do
not. DOD Directive 1332.414 § E3.A4; DOD Instruction 1332.40 § E8.
In any event, we decline to reach this newly raised overbreadth
argument on appeal. See Brown v. Hot, Sexy & Safer Products, Inc.,
68 F.3d 525, 530 (1st Cir. 1995) (stating that an appeal from a
motion to dismiss quot;is not an opportunity to conjure new arguments
not raised before the district court.quot;).

- 42 -

engaging in speech when they state their sexual orientation. See

Hurley v. Irish-American Gay & Lesbian & Bisexual Group of Boston,

Inc., 515 U.S. 557, 574-75 (1995). There is also no question that

First Amendment protections apply to some degree in the military

context. See Goldman, 475 U.S. at 503. But quot;our review of

military regulations challenged on First Amendment grounds is far

more deferential than constitutional review of similar laws or

regulations designed for civilian society.quot; Id. This limitation

is rooted in the recognition that free expression can sometimes

conflict with the military's compelling need to quot;foster instinctive

obedience, unity, commitment, and espirit de corpsquot; and that quot;the

essence of military service is the subordination of the desires and

interests of the individual to the needs of service.quot; Id.

The Act does affect the right of military members to

express their sexual orientation by establishing the possibility of

adverse consequences from announcing their sexual orientation. But

the Act's purpose is not to restrict this kind of speech. Its

purpose is to identify those who have engaged or are likely to

engage in a homosexual act as defined by the statute. The law is

thus aimed at eliminating certain conduct or the possibility of

certain conduct from occurring in the military environment, not at

restricting speech. See, e.g., Phillips v. Perry, 106 F.3d 1420,

1430 (9th Cir. 1997); Thomasson, 80 F.3d at 931. The Act relies on

a member's speech only because a member's statement that he or she

- 43 -

is homosexual will often correlate with a member who has a

propensity to engage in a homosexual act.

The Supreme Court has held that the First Amendment quot;does

not prohibit the evidentiary use of speech to establishquot; a claim

quot;or to prove motive or intent.quot; Wisconsin v. Mitchell, 508 U.S.

476, 489 (1993); see also Wayte v. United States, 470 U.S. 598, 612

(1985). As the Fourth Circuit explained in rejecting a challenge

identical to the one presented here:

There is no constitutional impediment, . . . to
the use of speech as relevant evidence of facts
that may furnish a permissible basis for
separation from military service. No First
Amendment concern would arise, for instance,
from the discharge of service members for
declaring that they would refuse to follow
orders, or that they were addicted to
controlled substances. Such remarks provide
evidence of activity that the military may
validly proscribe.

Thomasson, 80 F.3d at 931.

We think that the Fourth Circuit has correctly analyzed

this claim. To the extent that the Act may be constitutionally

applied to circumscribe sexual conduct, the First Amendment does

not bar the military from using a member's declaration of

homosexuality as evidence of a violation of the Act. We therefore

join the other courts that have rejected First Amendment challenges

to the Act on this basis. See Holmes, 124 F.3d at 1136; Able, 88

F.3d at 1300; Thomasson, 80 F.3d at 931.

The plaintiffs argue that, after Lawrence, this analysis

- 44 -

is quot;outmoded.quot; We disagree. The Act does not punish a member for

making a statement regarding sexual orientation; separation from

service is mandated only because a member has engaged, intends to

engage or has a propensity to engage in a homosexual act. This is

still a question concerning conduct (or likely conduct); the

member's speech continues to have only evidentiary significance in

making this conduct-focused determination.

Citing Dawson v. Delaware, 503 U.S. 159 (1992), the

plaintiffs also argue that the First Amendment nevertheless limits

the kinds of statements that may be used by the government as

evidence in an adversary proceeding. In Dawson, the Supreme Court

held that the defendant's membership in a white supremacist group

could not be introduced against him in a capital sentencing hearing

because it violated the defendant's First Amendment right to

associate. Id. at 166-68. In reaching this conclusion, the Court

emphasized that the admission violated the First Amendment because

it had quot;no bearing on the issue being tried.quot; Id. No similar

claim can be made here. A statement by a member that he or she is

homosexual is undoubtedly relevant to the kind of conduct a member

intends to engage in or has a propensity to engage in. See United

States v. Simkanin, 420 F.3d 397, 417-18 (5th Cir. 2005)

(concluding that Dawson did not apply where the defendant's

statement was relevant to the issues at sentencing). Therefore,

Dawson is inapposite.

- 45 -

Finally, plaintiffs argue that the Act's rebuttable

presumption violates their First Amendment rights. The Act's

rebuttable presumption works as follows. A military member may be

separated from the armed forces if,

the member has stated that he or she is a
homosexual or bisexual, or words to that
effect, unless there is a further finding,
made and approved in accordance with
procedures set forth in the regulations, that
the member has demonstrated that he or she is
not a person who engages in, attempts to
engage in, has a propensity to engage in, or
intends to engage in homosexual acts.

10 U.S.C. § 654(b)(2) (emphasis added).

The plaintiffs' attack on the rebuttable presumption is

twofold. First, they claim that for homosexual military members,

the rebuttable presumption is functionally impossible to rebut.

Because they are homosexual within the meaning of section

654(f)(1), they cannot prove that they are not homosexual as

section 654(b)(2) effectively requires. Second, the plaintiffs

argue that even if section 654(b)(2) did offer a presumption

capable of being rebutted by homosexual members, the existence of

such a presumption quot;would still force [them] and other gay and

lesbian service members to live in an environment that severely

restricts and chills constitutionally protected speech.quot; We deal

with each contention in turn.

Each plaintiff has agreed that he or she is a person who

quot;engages in, attempts to engage in, has a propensity to engage in,

- 46 -

or intends to engage in homosexual acts.quot; 10 U.S.C. § 654 (f)(1).

Because they admit they fall within section 654(f)(1)'s definition

of homosexual, none of them could have proved at a separation

proceeding that she or he was not a person who quot;engages in,

attempts to engage in, has a propensity to engage in, or intends to

engage inquot; prohibited conduct because, by definition, they are such

a person. See id. In that sense, for a military member who is

homosexual as defined by 654(f)(1), the rebuttable presumption

would be functionally impossible to rebut.

But that does not mean the Act violates the plaintiffs'

First Amendment rights. As noted earlier, the government may use

a member's statement that he or she is a homosexual as evidence

that he or she quot;engages in, attempts to engage in, has a propensity

to engage in, or intends to engage in homosexual acts.quot; If a

person cannot show otherwise, because in fact he or she does engage

in or have such a propensity to engage in homosexual conduct, then

the military is entitled to separate that person from the service.

The military, in that scenario, is not punishing speech but conduct

or propensity to engage in conduct.

Moreover, the contention that it is functionally

impossible for a gay member to say quot;I am homosexualquot; and then rebut

the presumption according to the terms of section 654(b)(2) is

inaccurate on its face. A member's personal definition of

quot;homosexualityquot; may not be coextensive with the Act's. For

- 47 -

example, a person may say he or she is homosexual even though the

person does not engage in, attempt to engage in, have a propensity

to engage in, or intend to engage in homosexual acts. In that

scenario, there is a meaningful opportunity to rebut the

presumption. The Ninth Circuit's opinion in Holmes provides

examples.

One female Naval officer admitted to her
homosexuality but submitted a statement, in
which she stated, inter alia, that she
understands the rules against homosexual
conduct and intended to obey those rules.
Another female Naval officer stated that she
was a lesbian but that the statement 'in no
way, was meant to imply [] any propensity or
intent or desire to engage in prohibited
conduct.'

124 F.3d at 1136.

Of course, a situation may arise where a gay member

triggers the rebuttable presumption by stating he is gay, proves he

is not a person who quot;engages in, attempts to engage in, has a

propensity to engage in, or intends to engage in homosexual acts,quot;

and yet is still separated from service. This member would have an

administrative challenge available to him. See 5 U.S.C. § 701. No

facts have been plead suggesting such a scenario arose in this

case.

We now turn to the plaintiffs' alternative argument that

the rebuttable presumption, even if capable of being rebutted by

homosexual military members, chills their First Amendment rights.

- 48 -

The plaintiffs suggest that the presumption is content based and

thus unconstitutional. The Fourth Circuit rejected a similar

argument in Thomasson. It observed:

Whenever a provision prohibits certain acts,
it necessarily chills speech that constitutes
evidence of the acts. A regulation directed
at acts thus inevitably restricts a certain
type of speech; this policy is no exception.
But effects of this variety do not establish a
content-based restriction of speech.

Thomasson, 80 F.3d at 932.

As we explained, the Act's purpose is not to restrict

military members from expressing their sexual orientation. Its

purpose is to identify those who have engaged in or are likely to

engage in a homosexual act. The fact that the Act may, in

operation, have the effect of chilling speech does not change the

analysis. See Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989) (noting that regulation is . . . content-neutral so long as

it is quot;'justified without reference to the content of the regulated

speech'quot; even if it has an quot;effect on some speakers or messages but

not others.quot;) (citation omitted); City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 47 (1986). Ultimately, the Act is

justified on a content-neutral, nonspeech basis; specifically,

maintaining the military's effectiveness as a fighting force.

quot;That the policy may hinge the commencement of administrative

proceedings on a particular type of statement does not convert it

into a content based enactment.quot; Thomasson, 80 F.3d at 933.

- 49 -

VI. Conclusion

The constitutional challenges presented in this case are

all aimed at a federal statute regulating military affairs.

Although the wisdom behind the statute at issue here may be

questioned by some, in light of the special deference we grant

Congressional decision-making in this area we conclude that the

challenges must be dismissed.

We affirm the judgment of the district court. No costs

are awarded.

So ordered.

- Dissenting Opinion Follows -

- 50 -

SARIS, United States District Judge, concurring and

dissenting. I concur with the majority opinion regarding the

application of Lawrence to the “Don’t Ask, Don’t Tell” statute, 10

U.S.C. § 654 (the “Act”). I also concur with the majority’s

discussion of the plaintiffs’ equal protection challenge. However,

I respectfully dissent from the discussion of the plaintiffs’ claim

that 10 U.S.C. § 654(b)(2)14 violates the First Amendment.

The military calls the evidentiary presumption created by

10 U.S.C. § 654(b)(2) a “rebuttable” presumption. See Department

of Defense (“DoD”) Directive No. 1332.14 ¶ E3.A1.1.8.1.2.2 (amended

1994) (“A statement by a Service member that he or she is a

homosexual or bisexual, or words to that effect, creates a

rebuttable presumption that the Service member engages in, attempts

to engage in, has a propensity to engage in, or intends to engage

in homosexual acts.”) (emphasis added). Because the plaintiffs

dispute that the presumption is rebuttable, I adopt the phrasing

14
10 U.S.C. § 654(b)(2) provides, in relevant part, that:

(b) A member of the armed forces shall be separated from
the armed forces . . . if one or more of the following
findings is made and approved . . .:

(2) That the member has stated that he or she is a
homosexual or bisexual, or words to that effect, unless
there is a further finding, made and approved in
accordance with procedures set forth in the regulations,
that the member has demonstrated that he or she is not a
person who engages in, attempts to engage in, has a
propensity to engage in, or intends to engage in
homosexual acts.

- 51 -

used by the Second Circuit, and call the presumption the “statement

presumption.” See Able v. United States, 88 F.3d 1280, 1283 (2d

Cir. 1996).

1. The Claims

Plaintiffs argue that the statement presumption violates

the First Amendment in two ways. First, they contend that the

presumption is a dead letter in practice because, as applied, “it

is functionally impossible for a gay service member to say ‘I am

gay’ and then prove that he has no ‘propensity’ to engage in

homosexual activity, even if the service member could show a track

record of celibacy and an honest intent to refrain from prohibited

conduct.” In the plaintiffs’ view, the only way to avoid discharge

is to recant their sexual orientation. As such, the statement

presumption is allegedly used to punish plaintiffs’ speech

concerning their own status as homosexuals.

Second, the plaintiffs argue that the statement

presumption is an unconstitutional allocation of the burden of

proof, which chills their own speech as well as a whole range of

protected expression by both gay and straight service members. The

plaintiffs argue that:

The provision’s burden falls on any speaker
whose “[l]anguage or behavior” suggests to “a
reasonable person” that the person “intended
to convey” that he or she is gay. This broad
definition could chill a whole range of
protected expression: A service member might
wave a rainbow flag or wear a pink triangle,
or he might state that he opposes “Don’t Ask,

- 52 -

Don’t Tell.” Under § 654's burden-shifting
mechanism, these possibilities and more could
force the service member -- whether straight
or gay -- into discharge proceedings where he
must prove that he has no propensity to engage
in homosexual conduct.

(internal citations omitted).

2. Content Neutrality

The starting point for the analysis is the difficult

question of whether the statement presumption restricts speech

based on its content or viewpoint. I ultimately agree with the

majority’s position that the statement presumption is content-

neutral, but I believe that the issue is a much closer call.

“The First Amendment generally prevents government from

proscribing speech, or even expressive conduct, because of

disapproval of the ideas expressed. Content-based regulations are

presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377,

382 (1992) (citations omitted). A content-based restriction “can

stand only if it satisfies strict scrutiny,” and thus is only

constitutional if it is “narrowly tailored to promote a compelling

Government interest.” United States v. Playboy Entm’t Group, Inc.,

529 U.S. 803, 813 (2000).

However, “[a] restriction that on its face appears to be

content-based, yet serves another purpose that by itself is not

speech restrictive, may be constitutionally permitted.” Able, 88

F.3d at 1294. Where a restriction does not “fit neatly into either

the ‘content-based’ or ‘content-neutral’ category,” the Supreme

- 53 -

Court has held that the speech restriction is content-neutral so

long as it is “justified without reference to the content of the

regulated speech.” City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 47-48 (1986) (finding zoning ordinance that limits

placement of adult theaters content-neutral because it was “aimed

not at the content of the films shown . . . but rather at the

secondary effects of such theaters on the surrounding community”)

(emphasis in original).

Even a content-neutral statute, though, must pass First

Amendment muster. A content-neutral regulation is permissible:

[1] if it is within the constitutional power
of the Government;
[2] if it furthers an important or substantial
governmental interest;
[3] if the governmental interest is unrelated
to the suppression of free expression; and
[4] if the incidental restriction on alleged
First Amendment freedoms is no greater than is
essential to the furtherance of that interest.

Wayte v. United States, 470 U.S. 598, 611 (1985) (quoting United

States v. O’Brien, 391 U.S. 367, 377 (1968)).

The four circuits that addressed the constitutionality of

the Act soon after its passage (and before Lawrence)15 rejected

First Amendment challenges to the statement presumption, but they

did not fully agree on the appropriate categorization of the First

Amendment restriction. In Thomasson v. Perry, 80 F.3d 915 (4th

15
A recent post-Lawrence challenge to the statute did not include
a First Amendment claim. See Witt v. Dep’t of the Air Force, No.
06-35644, 2008 WL 2120501 (9th Cir. May 21, 2008).

- 54 -

Cir. 1996) (en banc), involving a First Amendment challenge to the

Act both on its face and as-applied, the Fourth Circuit rejected an

argument that the statement presumption suppressed speech on the

basis of its content and viewpoint, holding:

The statute does not target speech declaring
homosexuality; rather it targets homosexual
acts and the propensity or intent to engage in
homosexual acts, and permissibly uses the
speech as evidence. The use of speech as
evidence in this manner does not raise a
constitutional issue –- “the First Amendment .
. . does not prohibit the evidentiary use of
speech to establish the elements of a crime,”
or, as is the case here, “to prove motive or
intent.”

Id. at 931 (quoting Wisconsin v. Mitchell, 508 U.S. 476, 489

(1993)). The Fourth Circuit pointed out that service members

subject to proceedings under the statement presumption have, in the

past, “successfully demonstrated that they lack a propensity or

intent to engage in homosexual acts.” Id. at 932. The Fourth

Circuit relied on opinions from two district courts to demonstrate

that some service members had successfully rebutted the presumption

of propensity. See Richenberg v. Perry, 909 F. Supp. 1303, 1313

(D. Neb. 1995) (noting that seven service members have successfully

rebutted the presumption but not describing the evidence

presented), aff’d, 97 F.3d 256 (8th Cir. 1996); Able v. United

States, 880 F. Supp. 968, 976 (E.D.N.Y. 1995) (identifying three

instances where Navy members had been able to escape discharge, but

concluding that these instances were “obviously aberrations that

- 55 -

cannot be taken to show that the Act holds out any realistic

opportunity to rebut the presumption”), vacated, 88 F.3d 1280, 1298

(2d Cir. 1996) (rejecting the district court’s characterization of

these cases as “aberrations” and stating instead that “they

demonstrate that the admission of homosexual status does not

inevitably equate with a finding of propensity to engage in

homosexual acts”).

Two circuits similarly held that the Act and its

implementing DoD Directives do not target mere status or speech,

but seek to identify and exclude those who are likely to engage in

homosexual acts. See Richenberg v. Perry, 97 F.3d 256, 263 (8th

Cir. 1996) (agreeing with Thomasson); Holmes v. Cal. Army Nat’l

Guard, 124 F.3d 1126, 1136 (9th Cir. 1997) (holding brevis that the

statement presumption does not violate the First Amendment because

the service members were discharged for their conduct and not for

their speech).

In a thoughtful opinion, the Second Circuit in Able v.

United States, 88 F.3d 1280 (2d Cir. 1996), addressed a facial

challenge to the statement presumption claiming that it violated

the First Amendment. Assuming, without deciding, that separation

of a service member based on status alone would be

unconstitutional, id. at 1297 n.10, the Second Circuit discussed

whether the statement presumption was content-neutral or content-

based. Id. at 1294-96. The court never opted for one label or the

- 56 -

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